February 24, 2009

Yet another notable written opinion in a federal child porn downloading case

I received this afternoon yet another fascinating district court opinion concerning sentencing in a federal child porn downloading case. In US v. Beiermann, No. CR 07-4018-MWB (N.D. Iowa Feb. 24, 2009) (available for download below), the defendant faced a guideline sentence range of 210-262 months' imprisonment. In an opinion that runs over 50 pages(!), the district judge explains in detail why he imposed a sentence of 90 months. Here is how the Beiermann opinion starts and ends:

This case, one of approximately 2,200 sentencings over which I have presided in nearly fifteen years on the federal bench, came before me for sentencing of a defendant who had been an Eagle Scout, with no criminal history points, for offenses involving possessing, receiving, transporting, and shipping child pornography in violation of 18 U.S.C. § 2252A. This case raises the question of the merits of the advisory United States Sentencing Guideline for defendants convicted of child pornography offenses, U.S.S.G. § 2G2.2, where, inter alia, this guideline purportedly is the result of congressional mandates rather than the United States Sentencing Commission’s exercise of its institutional expertise and empirical analysis. Although I find that the defendant’s offenses are very serious, I nevertheless find, as have several other district court judges, that a sentence in strict accordance with the advisory guideline for child pornography offenses would be at odds with the “parsimony provision” of the federal sentencing statute, 18 U.S.C. § 3553(a), which directs me to impose a sentence that is “sufficient, but not greater than necessary” to accomplish the goals of sentencing. This memorandum, therefore, explains my rationale for the sentence imposed....

Recognizing that Beiermann has committed serious crimes, but that, for all of the reasons discussed in detail above, the applicable advisory sentencing guideline is not a reliable indicator of the Sentencing Commission’s perspective on a fair sentence — and, indeed, the advisory guideline sentence must be rejected both on categorical, policy grounds, even in a “mine-run” case, and certainly must be rejected on the basis of an individualized determination in this case — I find that a sentence that is “sufficient, but not greater than necessary” to accomplish the goals of sentencing, see 18 U.S.C. § 3553(a), is 90 months of incarceration followed by 10 years of supervised release. Such a sentence is appropriate in light of all of the § 3553(a) factors and, therefore, is sufficient, but not greater than necessary, to accomplish the goals of sentencing.

Comments

Excellent opinion, though I wish Judge Bennett would show a bit of restraint in airing his personal animosity toward the U.S. Attorney's office.

His rationale for denying the prosecution any opportunity to question the court-appointed expert strikes me as weak.

Posted by: ab | Feb 24, 2009 6:42:26 PM

As a former defense lawyer in the Northern District every one involved knows that the district has the longest average sentences in the nation for most crimes. Sometimes , as in drug cases, more than twice the national average. This is according to prior statistics by the USSC.The reasons are the policies of the US Attorney's office which are out of whack with what the rest of the nation is doing. Does it mmake any sense that the worst criminals by a factor of two just happen to committ crimes in the Northern half of Iowa?

Posted by: Steve S | Feb 25, 2009 8:54:04 AM

I read it more as a professional disagreement with the prosecutors policies. After all, how in the heck could a AUSA tell a judge with a straight face that a variance of one month was not in the range of reasonableness - does being an Eagle Scout count for nothing? And if the AUSA's always recommend a Guideline sentence aren't they doing exactly what the Supreme Court said should not happen in the district court. I think the Judge is right that technically Rita and Nelson are a restraint on judicial authority not prosecutorial power - shouldn't all sides at the district court not give a Guideline sentence the presumption of reasonableness? The defense lawyer and AUSA should faithfully apply the 3553(a) factors, of course with their own spin on it. Then the judge should apply them and sometimes give a Guideline sentence and many times not. Sometimes higher - sometimes lower. It seems like nonsense to me to pretend that a guideline sentence is always the most reasonable one. In the districts I am familiar with the AUSA's frequently go along with a reasonable variance.

Posted by: J.P. Skip | Feb 25, 2009 9:39:51 AM

There's something desperately wrong with our country when a judge feels compelled to apologize for a 17.5 year prison sentence (7.5 in a cell and 10 of ritual hassling) for a non-violent first offender whose "victims" were pixel images on a computer screen.

Posted by: John K | Jul 18, 2009 11:32:13 AM

I truely agree, a lot of times these people are first time offenders, because of how young the internet is, we truely can not believe some of the current research that claims that these individuals will assault future children, and that we should throw the book at them. These are individuals some may be re living their sexual abuse, it is extremely hard for males to admit what has happened to them, and with a click a mouse they can try to figure out or question somethings in their past. Since when do we not show mercy for first time non-violent offenders. It is terrible what is happening to this children but why can't our government block most of it, versus entrapment and punishment. I know a lot of educated people whose curiousity will look at something for a moment if they can. They don't necessarily enjoy it or like it, but for a moment in a lifetime they may view something.

Posted by: persecuted witness | Sep 23, 2009 9:49:34 PM

I agree with John K.

Posted by: mpb | Mar 17, 2010 4:41:10 PM

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